The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1887-03-31
LOCAL OPTION.
That Feature Of the low Liquor Law
Sustained.
The Circuit Court Resnlrm the Decision OF
Judge Day--A Decision of Interest
to Lawyers, Liquor Dealers
and the w. o. T. U.

corpus before Judge Day, who, on hear
ing the case, Temandsd the prisoner
to the custody of the officers. Exception
was taken and the case went to the
Circuit Court on error. This Is the
highest authority which has yet passed
uDon the so called "local option feature
of the Dow law. The following Is the
complete decision of the Circuit Court,
delivered by Judge Albaugh, as prepared
for the DEMOCRAT by the official steno-
grspher:
Fifth Judicial District Court. Stark
county, O., February Term, 1887. Be-
fore Judges Follet, Albaugh and Jen
ner. John Madden vs.. Dennis SmeltZ.
The Council of the incorporated viii
Ia0e of Alliance passed an ordinance,
Under authority Of the statute, (83 y. l..
1871. which provides that, "any munich
nal cOrDorstion shall have full power to
regulate, restrain and prohibit ale,
beer and porter houses and other places
where intoxicating liquors are sold at
retail, for any purpose or in any qusnti-
ty other than Is provided In section of
said act"
The Judge held, 1st That any munic
ipsI CORPORATION is empowered under
this statute to pass such pTOhibitory
ordinance, and that the same is not
invalid for the reason that it Is author.
lied by the statute.
ID. That the statute authorizing the
passage of such an ordinance Is not in
conflict with Art. 2, Sec. 26, of the Con-
stitutiOn Of the State.
Sd. Where the requirements of the
statute have been followed by the COun-
L., Oe nrdinQnnn
IL ia not invalid for the reason that
general parliamentary rules governing
the action of legislative bodies have not
been strictly adhered to.
4th. Where q person is tried, con-
VICted and sentenced for an Offense be-
fore court of competent jurisdiction.
habeas corpus Is not the proper remedy,
by which errors occurring on the trial
can be reviewed.
Albaugh, j.
John Madden filed his petition In the
Court of Common Pleas, In which he set
forth In substance that he is unlawfully
imprisoned by the said Dennis Smeltz
marshal Of the village of Alliance In
Stark county, that the alleged cause of
his imprisonment is an order OF the
Mayor of Alliance for the arrest and I'm
prisOnment Of him, unless he pay fine
Of twenty-five dollars and costs assessed
him by the mayor In q certain proceed
ing, wherein 1t was claimed that he was
charged with having been the keeper OF
place where intoxicating liquors were
sold at retail about the Goth of October,
1885. That there is no law of the State
of Ohio, or ordinance Of the village of
Alliance, prohibiting or making 1t un-
lawful to keep such place, and that
there was no complaint filed with the
mayor In that proceeding, charging
him with any offense against the laws
of the Slate.
The writ was granted and made re.
turnable October 9th, 1886. ThereupOn
the marshal filed his answer, In which
he says that he has the custody and con-
troll Of the body of said Madden, and
that the cause of his detention is ss fol.
lows: That on the 23d day of October,
1886, in case then pending before the
mayor of the village Of Alliance, said
Madden was tried and convicted for the
violation of an ordinance Of said viii
lage entitled: "An ordinance to-. pro-
hibit ale, beer and porter houses and
other places where intoxicating liquors
are sold at RETAIL" And in which pro-
ceeding said Madden was adjudged to
pay q fine Of twenty-five dollars aud
costs nd t. stand committed until paid;
that the proceedings we're in all re-
spects regular, and that the said Mad
den refused aud failed to comply with
the order Of the court, wheTeUp0n
writ was Issued, q copy of which Is at
tached to the answer and was placed
in the hands of the marehal, and that
In pursuance of this writ, said Madden
is detained. The case was ubmitted to
the Court of Common Pleas, Hnd upon q
hearing that Court found that the said
Madden was lawfully imprisoned and
ordered that Re be remanded to the Gus
tOdy of the marshal, aud that he pay the
costs of said proceeding, TO which the
said Madden excepted. A bill of exceD-
tiOns was taken, setting forth all the
evidence offered upon the hearing and
petition in error was filed In this Court
to reverse the judgment and finding of
the Court Of Common Pleas.
The only errors assigned are that the
judgment was given for the said Dennis
Smeltz when 1t should have been given
for the said Madden, and that the said
Madden was entitled to trial by jury,
The grounds upon which the said Mad
den based his application and upon
which he now claims the Court Of Com
mon Pleas erred In remsnding him to
the custody of the marshal are that the
ordinance under which he was convicted
Is invalid for the reason:
First, That 1t was not authorized by
the statute.
Second, That the statute under which
the Council assumed to act in the
passage Of this ordinance is unc0nstitu
tion8I.
Third, Irregulsrlty In the passage Of
the ordinance.
A copy of the ordinance Is attached to
the bill Of exceptions and provides as
follows: Section 2. Be 1t further or
dained and enacted that 1t shall be un-
lawful for any person or persons to
keep any place within the limits of the
incorporated village Of Alliance where
intoxicating liquors are sold at retail,
for any purpose, or In any quantity
otherwise than upon prescriptions
Issued In good faith by a reputable
physician In active practice, or exclu-
siVely mechanical, pharmaceutical or
5acramental purposes. But nothing
herein contained shall prevent the man
ufacturlDg OF intoxicating liquors from
the raw material and the sale thereof
by the manufacturers In quantities of
one gallon or more at any one time"
The statute under which this Ordi.
nance was passed is section IL Of what
is known as the Dow law, passed
May 4th, 1885, S3 0. L 161, which con-
fers power upon municipal corporations
to regulate, restrain and prohibit the
keeping OF ale, beer and porter houses
and other places where intoxicating
liquors are sold at retail. This action
provides as follows: "That nothing In